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Why the Cooper Bill is unlawful

Yvette Cooper MP has sponsored a Bill (European Union (Withdrawal) (No. 5) Bill) which directs the Prime Minister to seek an extension of the period specified in Article 50(3) of the Treaty on European Union. This Bill is unlawful because it is progressing through Parliament without Queen’s Consent having been signified at the Third Reading in the Commons. Cooper’s Bill directs the Prime Minister to extend the A50(3) period of the Treaty of European Union. The Prime Minister would do this using the Royal Prerogative, because making treaties is part of the Royal Prerogative. Any Bill that impinges on the Royal Prerogative must have Queen’s Consent to be debated signified at the Third Reading. Normally the government has control of the order paper, and the Queen would be given binding advice by the Prime Minister to signify Queen’s Consent for any Bills supported by the government that impinge on the Royal Prerogative. However backbench MPs, such as Yvette Cooper, do not give binding advice to the Queen and consequently it is no surprise that Queen’s Consent has not been signified for this Bill.

Absence of Royal Consent from Yvette Cooper’s Bill

Below is the link to Hansard for Yvette Cooper’s Bill; there is no mention of Queen’s Consent, which is not surprising as Yvette Cooper MP, being a backbench MP, cannot advise the Queen.

Below is the link to Hansard for the third reading of the EU Withdrawal Act 2018. Hansard clearly states that Queen’s Consent (sometimes called Royal Consent) was signified for this Bill, which makes sense as the Prime Minister gives binding advice to the Queen and the Bill was government business.

The operative parts of the Bill where the Prime Minister is given the instruction to extend the Article 50 period are subsections (4) and (5) of clause 1 of the Bill, as follows:

“….(4) If the motion in the form set out in subsection (2) for the purposes of subsection (1) is agreed to without amendment, the Prime Minister must seek an extension of the period specified in Article 50(3) of the Treaty on European Union to a period ending on the date included in that motion.

(5) If the motion in the form set out in subsection (2) for the purposes of subsection (1) is agreed to with an amendment to change the date in the motion as moved to another date, the Prime Minister must seek an extension of the period specified in Article 50(3) of the Treaty on European Union to a period ending on the date included in the motion as agreed to.…..”

The above clauses are legally binding on the Prime Minister. This is the conclusion of the House of Commons Library Briefing Paper 08541 of 2nd April 2019 on this Bill – see section 3 of the paper on page 10. The Briefing Paper is here:

A helpful pamphlet on Queen’s Consent, published by the office for parliamentary counsel, is available below. The pamphlet also covers Prince’s Consent, covering those areas where the consent of the Prince of Wales is required.

provisions affecting the hereditary revenues of the Duchy of Lancaster or the Duchy of Cornwall, and personal property or personal interests of the Crown….”

In chapter 2, pages 2-3, section 2.7 says:

“…..prerogative powers of government (whether, in practise, exercised personally by the Monarch (with or without the advice of Ministers), or exercised on her behalf by Ministers, officials or other bodies) includes the following powers –

to make treaties;…..”

In Chapter 4 exceptions are considered to the above rule, where if the impact of a Bill on a Royal Prerogative is considered minor or trivial, then Queen’s Consent is not needed. Examples are given – and it is noteworthy that they cover Bills which impinged theoretically on the Queen’s revenues but in practise had little or no impact. No examples are given of Bills affecting broad prerogative powers such as making treaties or waging war being exempt from the requirement to have Queen’s Consent.

Indeed the Military Action Against Iraq (Parliamentary Approval) Bill 1999 provides a useful president. It was a private member’s Bill introduced by the late Tam Dalyell MP, then a Labour backbencher, like Yvette Cooper today. The aim of the Bill was to make military action by the United Kingdom against Iraq contingent on approval by a simple majority on a motion in the House of Commons. The Bill therefore impinged on the Royal Prerogative in respect of waging war, just like Yvette Cooper’s Bill does. The Bill did not have Queen’s Consent and consequently fell at its Second Reading. (Note that the requirement for Queen’s Consent was moved from the second reading to the third reading in 2015 – see the above pamphlet.)

The above pamphlet concludes in chapter 5:

“….5.1 Queen’s or Prince’s Consent must be signified in each House of Parliament, though it is normally only sought once in relation to a bill unless amendments to the bill require it to be sought again….”

Conclusion

Yvette Cooper’s Bill is unlawful. Its progress through Parliament should halted until a request is submitted for Queen’s Consent. Failure to see Queen’s Consent signified should cause the Bill to fall.